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Lee Chi Ming v E Entertainment Weekly Ltd

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date12 June 2019
Neutral Citation[2019] HKDC 771
Judgement NumberDCPI206/2017
Subject MatterPersonal Injuries Action
CourtDistrict Court (Hong Kong)
DCPI206/2017 LEE CHI MING v. E ENTERTAINMENT WEEKLY LTD

DCPI 206/2017

[2019] HKDC 771

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 206 OF 2017

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BETWEEN
LEE CHI MING Plaintiff
and
E ENTERTAINMENT WEEKLY LIMITED Defendant

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Before: Deputy District Judge Kate Li in Court
Dates of Hearing: 3 to 5 June 2019
Date of Judgment: 12 June 2019

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JUDGMENT

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Introduction

1. The plaintiff was a paparazzi entertainment news reporter working for the defendant. He has since 2000 been a photography reporter, and had 15 years of experience.[1] It was at his age of 41 when the incident took place on 17December 2015. The plaintiff was executing his job assignment of covering the story of a celebrity joining a girlfriend in a restaurant in Kowloon City. He intended to capture the celebrity entering the back door of the restaurant situated inside a rear lane. Hence, he stationed at one end of the rear lane from about 9 pm. As the restaurant meeting was of apparent newsworthiness, there were a good number of reporters from other agencies. The target emerged from the other end of the lane. All reporters resolutely made a dash for the celebrity, who more resolutely moved faster. The reporters failed to intercept him. The plaintiff tripped as he made the dash. The fall led to fracture of the right elbow bone. ECC compensation was made at HK$106,760.20. The plaintiff claimed common law damages of HK$403,159.80.

2. In my analysis, underlying the claim, as pleaded, are two main factual issues – (1) whether the back lane was dangerous, or inherently dangerous, and (2) whether the operation to capture the celebrity at the back door and surveillancing at the end of the back lane was pursuant to the defendant’s instructions.

3. In my view, the claim requires determination of two legal issues – (3) whether the fall was caused by the inherent danger of the back lane, or otherwise attributable to other causes, and (4) whether it is necessary that the defendant prescribed safe system or safer system of work at the back lane. In relation to this issue (4), the plaintiff alleged, as pleaded in the statement of claim, that the defendant could do better by providing a reflective mirror for the plaintiff to see the surroundings, and/or for a competent co-worker to supervise him, and watch out for him the surroundings when he took photos.

4. I find against the plaintiff and dismiss the claim.

Pleadings

5. In the Statement of Claim, the plaintiff averred that the incident happened in the following way:-

“4. On 23 November 2015, the Plaintiff entered into employment with the Defendant, and the Plaintiff was instructed to work at the back alley of 17 Lung Kong Road, Kowloon City on 17 December 2019, when the Plaintiff was required to provide editorial support to the Plaintiff for various matters. In the course of his work, the Defendant did not provide adequate precaution to the Plaintiff, so that he could properly execute his duties. As a result, the Plaintiff was seriously injured.” (own emphasis)

6. The particulars of the alleged failure of the defendant are pleaded as follows:-

“5. The said accident was caused by the sole negligence and/or breach of duty on the part of the Defendant, its employee(s), servant or agent(s), as appropriate.

Particulars of Negligence of the Defendant

The Defendant was negligent in that :

(a) Failing to take all reasonable and proper precautions for the safety of the Plaintiff while he was engaged in carrying out his work.

(b) Failing to take all reasonable and proper measures to warn the Plaintiff that the back alley is unsafe to work.

(c) Failing to provide a safe place of work to the Plaintiff because the space where the Plaintiff was required to discharge his duty was relatively too confined and insufficient.

(d) Failing to provide a competent co-worker to work with the Plaintiff, and as a result, the Plaintiff will require to discharge his duty in a dangerous position, leading to his injury.

(e) Failing to provide proper equipment to the Plaintiff, for example, a reflective mirror so that the Plaintiff could see his surrounding, when moving forward and backward, that will improve his safety in work at back alley.

(f) Failing to provide any and/or sufficient warning to the Plaintiff so that he could have knowledge that it would be dangerous to execute his duty in a back alley, in the absence of a competent co-worker.

(g) Failing to provide competent supervision to the Plaintiff as he should be asked to work in partnership with a co-worker when taking photographs (as he cannot see his surrounding while he was taking photographs).

(h) Failing to expressly warn the Plaintiff that the back alley could be dangerous.

(i) Failing to provide a safe system of work to the Plaintiff to ensure that proper arrangements and set of working systems were in place to prevent the accident.

(j) Failing to provide adequate training, instruction and supervision to the Plaintiff so as to prevent and/or minimize and/or reduce risks to the safety of the Plaintiff when executing his duties, especially working in a dangerous place like a back alley.

(k) Failing to assess the risks of the Plaintiff when instructing him to work in a back alley.

(l) Failing to take reasonable care and adequate precautions for the Plaintiff, but instead exposing him to an unnecessary risk of injury.” (own emphasis)

7. All the above allegations concern aspects of system of work, a broad concept as explained in Charlesworth & Percy on Negligence, 13th ed, at para. 11-67:-

“Meaning of “system of work”. This term is used to describe: (i) the organisation of the work; (ii) the way in which it is intended the work shall be carried out; (iii) the giving of adequate instructions (especially to inexperienced workers); (iv) the sequence of events; (v) the taking of precautions for the safety of the workers and at what stages; (vi) the number of such persons required to do the job; (vii) the part to be taken by each of the various persons employed; and (viii) the moment at which they shall perform their respective tasks. Further:

“it includes … or may include according to circumstances, such matters as the physical layout of the job – the setting of the stage – so to speak – the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices, and the issue of special instructions. A system may be adequate for the whole course of the job or it may have to be modified or improved to meet circumstances which arise. Such modifications or improvements appear to me equally to fall under the head of system.””

Liability issue 1 – Inherent danger of the back lane?

8. I am not satisfied that there was any danger or inherent danger in the subject back lane for the following reasons:-

(i) The plaintiff’s own evidence at trial was that the lane was not so dark and he could see the target emerging from the other end. There was some light emitting into the lane. Furthermore, the dirt and wet condition was at a normal degree.

(ii) The plead as to how the lane was “dangerous” and “unsafe” is that it was “relatively too confined and insufficient” in space (paragraph 5(c) of the Statement of Claim). There is no averment that the lane was unsafe by the presence of rubbish, being wet or by its being dark.

(iii) On space confinement, there was no plan with dimension adduced and there was no attempt to further make out the assertion that the space was confined. In my judgment, the allegation of space confinement was not proved. Saliently, the Plaintiff told the court when giving evidence, that there were really too many reporters, when explaining why on reflection he would like himself to have a better lookout for himself.

(iv) In any event, the lane was packed with reporters. The space problem, if any, related to the presence of reporters, not inherently because of the conditions of the lane.

(v) I accept that the plaintiff tripped over rubbish. However, mere existence of rubbish cannot render a place inherently unsafe. In my view, as analysed below in Issue 3, it was an all out dash combined with existence of rubbish without sufficient mindfulness on the plaintiff’s part that caused the fall. The rubbish or other conditions (eg darkness) were anyway not relied on to support the alleged inherent danger. I am mindful that there was oral evidence from the plaintiff and his witness Mr Wong that the rubbish that tripped the plaintiff was a black rubbish bag. The potential argument is apparently that darkness rendered the bag unnoticeable, and the incident was not of a consequence of the plaintiff’s carelessness. However, darkness was not pleaded as the basis for the alleged danger of the lane, and hence, the evidence on the color of the rubbish did not assist.

9. I am mindful that the Court of Final Appeal in Kwok Chin Wing v 21 Holdings Ltd, reminded that evidence on unpleaded issues cannot be relied on:-

“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues: Wing Hang Bank Ltd v Crystal Jet International Ltd [2005] 2 HKLRD 795, 799 [6(1)]. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues...

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